Sole v Penzhorn and Others (CIV/APN 248 of 2000) [2000] LSCA 58 (1 August 2000)

C I V / A P N / 2 4 8 / 2 0 00 IN T HE H I GH C O U RT OF L E S O T HO In the matter between:- M A S U P HA E P H R A IM S O LE A P P L I C A NT vs G U I DO P E N Z H O RN 1st H J A L M ER H. T. W O K ER J O S E PH T E B O HO M O I L OA M O I L OA A T T O R N EY G E N E R AL D I R E C T OR OF P U B L IC P R O S E C U T I ON 2nd 4th R E S P O N D E NT R E S P O N D E NT R E S P O N D E NT R E S P O N D E NT R E S P O N D E NT 3rd 5th J U D G M E NT ( R E A S O NS F O R) D e l i v e r ed by the H o n o u r a b le Mr Justice S . N. P e e te on the 1st A u g u st 2 0 00 On the 11th July 2 0 00 Mr P h o o f o lo a p p e a r ed before me in c h a m b e rs a nd m o v ed an urgent application ex p a r te in w h i ch he s o u g ht a nd obtained an interim order c o u c h ed in the following terms:- " 1. T h at a R u le Nisi b e, a nd it is h e r e by issued calling u p on the r e s p o n d e n ts to s h ow cause, if a n y, w h y- (a) T he periods of notice provided by the R u l es of C o u rt a nd treating this matter as o ne requiring urgent attention are hereby dispensed with; (b) First, second a nd third respondent should not be interdicted f r om taking a ny further part in the preparation for an/or presentation at the trial of the charges preferred against the applicant a nd accused in the Criminal trial N o . 1 1 1 / 9 9, on behalf of the C r o w n, w h i ch Criminal trial is presently pending before this H o n o u r a b le Court. (c) In the event that respondents o p p o se this application, respondents should not be directed to file their opposing papers on or before the 20th July, 2 0 0 0, a nd applicant to file replying affidavit, if any, on or before 26th July, 2 0 0 0; a nd that the matter be placed on the roll for a r g u m e nt on the 31st July, 2 0 0 0. (d) R e s p o n d e n ts should not be directed to p ay for the costs hereof in the event that this applicant is o p p o s e d. (e) Granting applicant further a nd or alternative relief. 1. Prayer 1 (a) to operate with immediate effect as an interim relief." I also ordered that Prayers (a) and (c) operate with i m m e d i a te effect. T he respondents h a v i ng b e en duly served on the 11th July 2 0 00 w i th the interim order a nd f o u n d i ng affidavits d e p o s ed to by the applicant filed their intention to o p p o se on the 18th July 2 0 00 a nd elected to raise certain points of l aw w i t h o ut filing a ny a n s w e r i ng affidavits. R u le 8 ( 1 0) (c) reads:- " A ny p e r s on o p p o s i ng the grant of a ny order s o u g ht in the applicant's notice of m o t i on shall- (a) (b) (c) if he intends to raise a ny question of l aw w i t h o ut a ny a n s w e r i ng affidavit, deliver notice of his intention to do so, within the t i me stated setting forth s u ch question." F or brevity, the respondents raised the issue of lis p e n d e ns c o n t e n d i ng that the relief sought in Prayer 1 (b) of the notice of m o t i on h ad b e en previously raised in the criminal p r o c e e d i n gs in K i ng vs M a s u p ha E p h r a im S o le a nd O t h e rs C R J / T / 1 1 1 / 99 a nd is a issue p e n d i ng to be d e t e r m i n ed by my B r o t h er Cullinan A. J. T he respondents attach an a n n e x u re " A" titled - N O T I CE OF I N T E N T I ON TO O B J E C T, TO E X C E PT A ND TO Q U A SH T HE I N D I C T M E N T, S E C T I O NS 152 (1) 153(1) A ND 162 OF T HE C R I M I N AL P R O C E D U RE A ND E V I D E N CE A CT 1981. M o re importantly para 5 of this d o c u m e nt reads- " 5. T he accused further contends that the prosecutors are not objective, impartial a nd detached as prosecutors are expected to be a nd that the handling of this trial by prosecutors w ho are perceived to be partial, a nd biased (as they represented the interests of the complaint herein in other matters) will deprive h im of his fundamental rights to a fair trial as envisaged in Section 12 of the Constitution of L e s o t ho 1 9 9 3. If the prosecutors do not voluntarily w i t h d r aw f r om the trial of the accused the accused intends to apply to this H o n o u r a b le C o u rt for an order interdicting a nd restraining t h em f r om further taking part as prosecutors in the criminal matter of the accused." It c an be safely a s s u m ed that after the notice ( A n n e x u re " A ") w as served on the Director of Public Prosecutions on the 9th J u ne 2 0 0 0, the original w as placed in the file of the criminal proceedings in C R I / T / 1 1 1 / 2 0 0 0. T he question therefore is whether the relief or issue raised in prayer 1 (b) is p e n d i ng before Cullinan A. J. though not yet decided; In fact in this notice the applicant intimates his intention to proceed with the said application to cause the first a nd second respondents to be restrained a nd interdicted by "this H o n o u r a b le C o u r t" - m e a n i ng the Criminal C o u rt in C R I / T / 1 1 1 / 2 0 00 - on the g r o u n ds the said respondents will be biased a nd partial as prosecuting counsel thus violating his fundamental right to fair trial as guaranteed under Article 12 of the Constitution of Lesotho. Indeed the lengthy affidavit of the applicant catalogues several g r o u n ds for attacking the impartiality of the t wo respondents - (See para 14) - in fact he alleges categorically that they are e v en potential or possible witnesses in the forthcoming criminal trial (para 2 1) a nd h a ve personally e v en participated in police investigations. In my v i ew the issue Us p e n d e ns should be interpreted sufficiently w i de e n o u gh to m a ke provision for cases w h e re a lis h as only b e en formally p r o p o s ed to be instituted - V an As vs A p p o l l us & A n o t h er 1 9 93 (1) SA 6 0 6; W i l l i am vs S h ub 1 9 76 (4) SA 5 6 7; N o ah vs U n i on N a t i o n al S o u th British I n s u r a n ce C o . L td 1 9 7 9 ( 1) SA 3 30 at 3 3 2 - 3 33 A; In my v i ew the applicant h ad already m o o t ed the application a nd g i v en a formal notice to the Director of Public Prosecutions requesting h im to w i t h d r aw the t wo respondents as his representatives in the criminal trial failing w h i ch he has intimated a nd p r o p o s ed his intention to apply to the "trial court" for an injunction disqualifying the t wo respondents as prosecutors on the g r o u n ds that they w e re biased a nd not impartial. W h en the issue of lis p e n d e ns is raised a nd h as b e en sufficiently established, the court has discretion to exercise; a nd in this case, the question is w h e t h er the application c an be m o re justly a nd equitably a nd indeed conveniently dealt w i th by the presiding J u d ge in the criminal trial. ( Y e k e lo vs B o d l a ni 1 9 90 (3) SA 9 71 at 9 73 - Considerations of c o n v e n i e n ce a nd fairness are important - V an As vs A p p o l us (supra) at 6 1 0 D. In this case it is not in d o u bt that my Brother Cullinan A. J. h as seen the Notice " A n n e x u re A" a nd regards the subject matter of impartiality of the t wo respondents as a matter to be considered before plea. T h is criminal trial h as b e en set d o wn for hearing f r om T u e s d ay 1st to 4th A u g u st 2 0 0 0. E v en if the applicant w o u ld not raise it before the appellant pleads, the trial J u d ge could bring the notice A n n e x u re " A" m e ro m o tu to the attention of the applicant. This notice - m o st importantly - stands " u n w i t h d r a w n" f r om the court file in CRI/T/111/99. F or this court a nd indeed any court to be seized with this matter in a proper m a n n e r, the applicant m u st lodge an application in terms of Section 2 2 ( 1) of the Constitution of Lesotho. (This procedure has h o w e v er not b e en followed by the applicant). It reads :- " 2 2. (1) If any person alleges that a ny of the provisions of sections 4 to 21 (inclusive) of this Constitution has been, is being or is liked to be contravened in relation to h im (or, in the case of the person w ho is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to a ny other action with respect at the s a me matter w h i ch is lawfully available, that person (or that other person) m ay apply to the H i gh Court for redress. (2) T he H i gh Court shall h a ve original jurisdiction - (3) to hear a nd determine any application m a de by any person in pursuance of subsection (1); a nd (4) to determine any question arising in the case of any person w h i ch is referred to it in pursuance of the subsection (3), and m ay m a ke such orders, issue such process a nd give such directions as it m ay consider appropriate for the purpose of enforcing or securing the enforcement of a ny of the provisions of sections 4 to 21 (inclusive) of this Constitution: Provided that the H i gh Court m ay decline to exercise its p o w e rs under this subsection if it is satisfied that adequate m e a ns of redress for the contravention alleged are or have b e en available to the person concerned under any other law." If it w as the applicant's case that his right to a fair trial under section 12 of our Constitution h ad b e en violated or w as likely to be violated a formal application on notice ought to h a ve b e en m a de in terms of section 22 (1). I am acutely a w a re that the Chief Justice has yet to m a ke rules with respect to practice a nd procedure for the enforcement of the protective provisions under the Constitution. In the case of S m y th vs U s h e w o k u n ze a nd A n o t h er - 1 9 98 (3) SA 1 1 25 G u b b ay C J. - in dealing with an application almost similar the present observed that the objectivity, detachment a nd impartiality of prosecution w e re essential c o m p o n e n ts to a fair trial as envisaged under section 18 of the Constitution. W i t h o ut deciding the issue in instant case, I can only point out that G u b b ay C J. described the right to a fair trial as " a constitutional value of s u p r e me importance". My Brother Cullinan A. J. is already seized with the criminal trial this w e ek and in my v i ew convenience a nd indeed justice requires that he, and he only, should determine the issue - already on notice - whether the participation of the t wo respondents as prosecutors in the criminal trial d ue to start before h im will prejudice the right of the applicant to a fair trial under section 12 of our Constitution. T he application before me in so far as it seeks to enforce section 12 of the constitution is improperly before this court because a formal application under section 22 (1) of the said constitution has not b e en m a de to invoke the constitutional jurisdiction of the court; the application has b e en h o w e v er m a de ex parte under the R u le 8(22) (see Certificate of urgency signed by Mr Phoofolo in w h i ch it should h a ve b e en stated that relief under Prayer 1 (b) w as being sought under section 2 2 ( 1) of the Constitution.) In my v i ew the H i gh C o u rt can determine this matter only if it h as original jurisdiction as a constitutional court. Section 22 (2) of the Constitution reads :- " T he H i gh Court shall h a ve original jurisdiction - (a) to hear a nd determine a ny application m a de by any person in p u r s u a n ce of subsection ( 1 )" I therefore hold that since the provisions of section 22 h a ve not b e en invoked this court cannot sit as a constitutional court m e ro m o tu a nd e v en on this g r o u nd alone I am of the v i ew that the application ought not be allowed. T he constitutional jurisdiction of this court is specially created by Section 22 (2) of the Constitution a nd m u st be specially invoked. It should not be a s s u m e d. T he unlimited jurisdiction of the High Court u n d er the H i gh Court A ct of 1 9 78 relates to "civil or criminal proceedings a nd not matters constitutional. Subsection 22 (5) of the Constitution reads:- "Parliament m ay confer u p on the H i gh Court such p o w e rs in addition to those conferred by this section as m ay appear to the necessary or desirable for the purposes of enabling that court m o re effectively to exercise the jurisdiction conferred u p on it by this section". In his heads of a r g u m e nt (paragraph 4) the applicant states:- " T he subject matter of the application is an interdict w h i ch raises the question of the applicant's right to a fair trial in terms of the Constitution." I do not agree that sitting as a trial Judge in the criminal case, my Brother Cullinan A. J. is precluded from sitting as constitutional court if the provisions of section 2 2 ( 1) (2) of the Constitution are properly invoked before the appellant pleads to the indictment. This section reposes in H i gh Court w i de a nd unfettered discretion to m a ke a ny order it considers appropriate for the purpose of enforcing the provisions of Bill of Rights (See S m y th vs U s h e w o k u n ze (supra) at p.1141). I am aware of the provision of H i gh Court R u le 22 (15) w h i ch provides:- " T he court hearing an application whether brought ex parte or otherwise m ay m a ke no order thereon, save as to costs, if any, but grant leave to the applicant to r e n ew the application on the s a me papers supplemented by such affidavits as the case m ay require." In this case, the applicant's attorney w as fully a w a re that A n n e x u re " A" had b e en filed in the court file of the criminal proceedings. He ought to h a ve b e en a w a re that before the H i gh Court can m a ke a p r o n o u n c e m e nt under section 12 of the Constitution, its constitutional jurisdiction m u st be specifically invoked by the applicant under section 2 2. This has not b e en d o ne in this application. ( M a s e f a b a t ho L e b o na vs D P P- 1997-98 L LR 143) I therefore u p h o ld the points of l aw raised in l i m i ne by the respondents a nd dismiss the application w i th costs w h i ch should include costs of o ne counsel. ( S . N . P E E TE J U D GE For Applicant : Mr Phoofolo For Respondents : Mr Dickson SC and Ms H e r m aj SC Mr Sello